#### A. C. BECK v. WILKINS-RICKS COMPANY.

(Filed 25 February, 1920.)

1. Bailment — Garage—Automobiles—Ordinary Care — Negligence.

Tbe defendant owner of a garage, wbo bas received tbe plaintiff’s automobile for repairs, is regarded as a bailee, and is not liable for tbe failure to return tbe property in good condition wben be bas observed tbe ordinary care devolved upon bim by bis bailment.

3. Same — Burden of Proof — Res Ipsa Loquitur — Evidence—Nonsuit— Trials.

Where tbe owner of a garage receives an automobile for repair, and it is destroyed by fire in tbe garage after tbe owner bad called for it at tbe time specified, but kept longer therein for tbe garage man to repair it, in his action for damages tbe owner of tbe automobile bas tbe burden of proving, throughout tbe trial, tbat tbe damage was caused by tbe defendant, but having shown tbe destruction of bis machine by fire, as stated, tbe defendant must go forward with bis proof to rebut tbe prima, facie case established, under tbe doctrine of res ipsa loquitur, and a judgment as of nonsuit upon plaintiff's evidence will be denied.

At.len, J., dissenting.

Appeal by plaintiff from Gormor, J., at September Term, 1919, of Lee.

Action for damages for tbe destruction of an automobile while in tbe defendant’s garage for repairs. It was in evidence tbat tbe plaintiff carried bis ear to tbe garage for certain minor repairs, and was to call for it at noon, it' being understood tbat be would need it at tbat time. Wben be called for it at tbat time be was told tbat it would take only a short time longer, not more than 30 minutes. Tbe plaintiff then stated tbat be would call for it wben be came back from dinner, but being delayed, be went at 5 p.m. and found bis automobile torn down and tbe defendant’s employees grinding tbe valves, which bad not been authorized by plaintiff. Tbe answer admits tbat tbe machine was not in such condition tbat it could be removed tbat afternoon. It is alleged in tbe complaint and admitted in tbe answer tbat during tbat night tbe building was destroyed by fire and tbe car with it. Tbe complaint alleges tbe liability for negligence, and also for departure from tbe terms of tbe bailment, and also a promise to pay by tbe company after tbe destruction of tbe machine. At close of plaintiff’s evidence tbe court sustained a motion for judgment as of nonsuit, and tbe plaintiff' excepted and appealed.

E. L. Gavin, Williams & Williams, and Hoyle & Hoyle for plaintiff.

Seawell & Millihen for defendant.

*232Clark, C. J.

The defendant, as bailee, assumed liability of ordinary care for the safe beeping and the return of the machine to the bailor in good condition. The bailee did not assume liability as insurer, and therefore did not become liable for the nonreturn of the property in good condition, if be observed the ordinary care devolved upon him by reason of the bailment. If the machine bad been injured, or stolen, or destroyed by fire while in bis custody, the defendant would not be liable if such care bad been observed. On the other band, the mere fact that the property bad been destroyed by fire or stolen did not absolve him from responsibility, any more than be would have been absolved if it bad been injured in bis custody, unless be bad shown that be bad used the care required of him by virtue of bis bailment. The burden of proving negligence was on the plaintiff, and this burden does not shift, but when it was shown, or admitted, that the machine was not returned by reason of its being .destroyed, or stolen, or that it was returned in injured condition, it was the duty of the defendant “to go forward” with proof to show that it bad used proper care in the bailment. Therefore, it was error for the court to withdraw the case from the jury, and thus to bold, as a matter of law, that the defendant bad exercised proper care.

The law is admirably summed up and stated, upon a review of all the authorities, 6, Corpus Juris, pp. 1157-1160, as follows:

> “Sec. 156. In an action to recover the bailed property, the burden of proof is on the bailor to. establish the bailment, and the failure to return the property in accordance with the contract.”

> “Sec. 158. The rule is undoubted that in all actions founded upon negligence, or a culpable breach of duty, the burden is on plaintiff to establish negligence by proof. This principle is recognized by all the authorities as applicable between bailor and bailee, and the only conflict is on the question whether the loss of, or damage to, the goods while in the bailee’s possession raises such a presumption of negligence on bis part as to establish a prima facie case against him.”

> “Sec. 159. In some of the old decisions it was held that the loss or injury raised no presumption of negligence. The bailee is not an insurer of the goods, and when they are lost or damaged, it was said that the law, which never presumes any man negligent, would rather attribute the loss to excusable causes. It was not enough for plaintiff to prove the loss or injury, but it was held that be must go.further and must show that the same bad occurred by defendant’s negligence.”

> “Sec. 160. The Modern Bule. The rule adopted in the more modern decisions is that the proof of loss or injury establishes a sufficient prima facie case against the bailee to put him upon bis defense. Where chattels are delivered to a bailee in good condition and are returned in a damaged state, or are lost or not returned at all, the law presumes negli*233gence to be the cause, and casts upon the bailee the burden of showing that the loss is due to other causes consistent with due care on bis part. But if the possession of the bailee has not been exclusive of that of the bailor, the rule does not apply. In order to throw the burden of evidence upon the bailee it “is sufficient that the bailor has shown damage to the bailed article that ordinarily does not happen where the requisite degree of care is exercised.”

The above is sustained by the almost uniform authorities cited in the notes to the above, and the reasons are thus summed up:

> “1. Reasons of the Rule. Since the bailor is generally at a disadvantage in obtaining accurate information of the cause of the loss or damage, the law considers be makes out a case for the application of the rule of res ipsd loquitur by proof of the bailment, and the failure of the bailee to deliver the property on proper demand.” Corbin v. Cleaning Co., 181 Mo. App., 167.

> “2. The rule rests upon the consideration tbat where the bailee has exclusive possession the facts attending loss or injury must be peculiarly within bis own knowledge. Besides, the failure to return the property, or its return in an injured condition, constitutes the violation of a contract, and it devolves upon the bailee to excuse or justify the breach.” Nutt v. Davidson, 54 Colo., 588; 44 L. R. A. (N. S.), 1170.

> “3. The rule is founded in necessity, and upon the presumption that a party who, from bis situation, has peculiar, if not exclusive knowledge of facts, if they exist, is best able to prove them. If the bailee, to whose possession, control, and care the goods are entrusted, will not account for the failure or refusal to deliver them on demand of the bailor, the presumption is not violent that be has been wanting in diligence, or that be may have wrongfully converted or may wrongfully detain them; or if there be injury to, or loss of them, during the bailment, it is but just that be be required to show the circumstances, acquitting himself of the want of diligence, it was bis duty to bestow.” Davis v. Hurt, 114 Ala., 150, approved Hackney v. Perry, 152 Ala., 633.

In 6 Corpus Juris, 1160, the conclusion from the long list of authorities and citations in the notes is thus summed up : “The burden of proof of showing negligence is on the bailor and remains on him throughout the trial. The presumption arising from the injury to the goods or failure to redeliver is sufficient to satisfy this burden and make out a prima facie case against the bailor; but the bailee may overcome this presumption by showing that the loss occurred through some cause consistent with due care on bis part.” This summing up is based, among other citations upon the very clear statement of this Court by Walker, J., in Hanes v. Shapiro, 168 N. C., 31, in which, after stating that some of the old authorities were somewhat different, Walker, J., says: “But *234the better opinion, supported by the weight of authority, holds that while the burden of proving negligence rests upon the plaintiff, and does not shift throughout the trial, the burden of proceeding does shift, and that where the plaintiff has shown that the bailee receives the property in good condition, and failed to return it, or returned it injured, he has made out a prima facie case of negligence.”

He further says (page 32): “Unless the bailee overcomes this prima facie case by satisfying the jury that the loss or damage was consistent with the absence of' fault on his part, the plaintiff may prevail.” And he further says (p. 33) : “But those rules are, of course, subject to the qualification that the bailee is bound, in all proper instances, when intrusted with the bailee’s property, to exercise due care with respect to the subject.” This entitled the plaintiff to have the facts of this case submitted to the jury.

The authorities to the above effect are numerous, and the more recent authorities are uniform to that effect.

While the destruction or loss of property is not conclusive of negligence, the failure to return the property does devolve upon the defendant the burden of going forward with proof to show that it discharged its duty of requisite care of the property while in its custody. It would be singular if the mere fact that the property was destroyed or stolen or injured was conclusive that the bailee had exercised proper care. It had the best knowledge of the facts, and if proof thereof was not forthcoming the presumption is that it could not produce it.

To the same effect are the other text-books and authorities. In 3 R. C. L., 151 (Bailment, sec. 74), where explaining the apparent conflict of the later with the older cases on this point as due to the confusion between “the burden of the proof” and “duty of going forward,” it is said: “The general rule, at least in the United States, seems to be that where a bailor alleges and proves simply the delivery of the property to the bailee, and the latter’s failure to return it on demand, a prima facie case is made out against the bailee.” Ibid, p. 152 (sec. 75), it is said that there are authorities which support the broad doctrine that “the burden of proving freedom from negligence by the preponderance of the evidence, where the property is damaged, or destroyed, is on the bailee, although it would seem that some of the cases contain language which indicate that it must be taken simply as authority for the proposition that, in case of injury to or loss of the property, the burden of overcoming a presumption of negligence rests on the bailee.”

In 2 R. C. L., 1210 (Automobiles, sec. 46), it is said: “It may be accepted as settled that persons operating a garage are required to exercise reasonable care to protect and preserve automobiles placed in their custody for storage or repairs, and if an automobile So placed is injured *235or destroyed on account of negligence of tbe garage keeper or bis servants while acting within the scope of their authority the garage keeper is liable therefor. . . . On proof of the delivery of a car into a garage, if the garage keeper is unable by reason of the destruction of a car, to make return thereof, the burden is cast on him to show that the car was not destroyed by his negligence.”

In Hale on Bailments, 241, it is said that, “A failure or refusal by a warehouseman to deliver, on demand, goods entrusted to him, or the return of the goods in a damaged condition, is prima facie evidence of negligence sufficient to cast upon him the burden of accounting for nondelivery. In other words, the burden of proving negligence rests on plaintiff throughout, but the weight of evidence shifts,” citing authorities. It is further said that “The burden of the proof does not shift, but that the failure to return, or the destruction, or injury, of the property is such prima facie evidence of negligence that there devolves upon the bailee the duty of going forward with proof that he exercised proper care.”

This is simply another way of saying that the failure to return the goods in good condition is a breach of the contract of bailment, which, if unexplained, entitles the bailor to recover, and that when the bailee claims that the property has been destroyed, or stolen, or injured without any fault on its part — it is called on to put on some proof of the circumstances thereof. These occurrences being out of the ordinary course of events, and the facts being peculiarly in the knowledge of the bailee, are sufficient evidence of negligence to carry the case to the jury.

The whole subject is exhaustively discussed in the text and notes to 6 Corpus Juris, and R. C. L., above cited, and we think the present doctrine on the subject, and the reason of the thing, is nowhere more clearly set out than in the quotation from Hanes v. Shapiro, above set out in Corpus Juris from the opinion of Mr. Justice Walicer, which we think states accurately the correct conclusion.

It would be a singular proposition if the plaintiff, who has entrusted his property to the care of the defendant, should find the latter protected from liability for loss of, or injury to, the property without any proof of the discharge of his duty as bailee, though such evidence is in his special knowledge, unless the plaintiff (who is often a stranger) shall grope around among the defendant’s employees to find evidence of the negligence of their employer or of their eoemployees. The destruction of theft of the property, or injury thereof, not being in the ordinary course, calls upon the bailee to explain it just as a collision or derailment is prima facie negligence, which carries the case to the jury. Marcom v. R. R., 126 N. C., 200, and citations in Anno. Ed.

In this case there was some additional evidence tending to show negligence, among others the fact that there was, on the day the machine was *236left in the garage, remains of half-smoked cigarettes lying around, and that after the fire the representative of the defendant promised to pay for the loss of the machine. This evidence must be taken as true upon a nonsuit with all just inferences that can be drawn therefrom as for instance that the agent of the company bad information that negligence caused the fire.

¥e need not, however, discuss (as the case goes back for a new trial) whether the defendant is bound by such promise for the authority of the party making such agreement is not fully brought out in the evidence. For the same reason, also, we need not consider the exceptions by the plaintiff to the evidence.

It is sufficient to say, upon the above authorities, that the failure of the bailee to return the property, with the admission that it has been burned, made out a prima facie case, which devolved upon the defendant the duty of going forward with proof that it bad discharged its duty of proper care while entrusted with the custody of the plaintiff’s automobile. Upon the evidence, this was the proper subject of inquiry, which the plaintiff was entitled to have investigated by the jury. The judgment of nonsuit is

Reversed.

Allen, J.,

dissenting: The plaintiff delivered bis automobile to the defendant to be repaired in its garage, and it was destroyed by fire. There is no evidence as to the origin of the fire or of negligence on the part of the defendant. I think the rule applicable to these facts is correctly stated by Associate Justice Walker in Hanes v. Shapiro, 168 N. C., 31, as follows: “But the better opinion, supported by the weight of authority, bolds that while the burden of proving negligence rests upon the plaintiff, and does not shift throughout the trial, the burden of proceeding does shift, and that where the plaintiff has shown that the bailee received the property in good condition and failed to return it, or returned it injured, be has made out a prima facie case of negligence. ‘When be has shown a situation which could not have been produced except by the operation of abnormal causes, the onus rests upon the defendant to prove tbat the injury was caused without bis fault.’ Bes ipsa loquitur. Unless the bailee overcomes this prima facie case by satisfying the jury that the loss or damage was consistent with the absence or fault on bis part, the plaintiff may prevail. Where the bailee makes such showing, however, as where it appears that the property was stolen or injured by vis major, the burden of proceeding shifts back to the plaintiff, and be must show that the bailee was negligent in exposing the property to risk of harm, or in failing to avoid the danger after it was known. In other words, the weight of the evidence may be *237in favor first of one party and then the other, but the burden of establishing the issue in his favor rests on plaintiff throughout. Hale on Bailments, pp. 31 and 32.”

It is not disputed that the automobile was destroyed by fire — ms major —and, if so, the prima facie case made by showing delivery and failure to return was destroyed, and he could not recover without furnishing evidence of negligence, which he has failed to do.

As it appears to me, the judgment of nonsuit ought to be sustained.